The Supreme Court today decided case No. 08-103, Reed Elsevier v. Muchnick. In an 8-0 opinion by Justice Thomas, the Court held that § 411(a) of the Copyright Act, which requires registration before filing suit (for United States works) is not a “jurisdictional” limit. Thus, the district court had subject-matter jurisdiction to approve a class-action settlement that included plaintiffs who hadn’t registered their copyrights.
I approve of the result, for reasons I laid out in a blog post a year ago. The “jurisdictional” theory just doesn’t make sense in terms of the policies of copyright: it keeps some important claims (such as declaratory judgment actions by defendants) that ought to be in court out. I would have preferred that the Supreme Court address these copyright-policy issues; instead, it focused on its precedents on jurisdictional and non-jurisdictional statutory elements. That’s understandable, though; the Court wanted to give guidance to the other federal courts on a wider range of issues, not just copyright ones. And since § 411(a) was drafted reasonably, applying the general rule leads to the right result in this case.
This decision has some implications for the Google Books settlement. Most notably, the settlement class was defined to avoid this problem: it excluded the owners of unregistered United States works. Now that the Supreme Court has spoken, that move turns out to have been unnecessary: the settlement class could have included them. I doubt they’ll be added back in, though: the settlement would essentially have to be rebooted for the settlement class to be expanded that much. Moreover, it’s now clear that there are other factors constraining the size of the class, such as the notice issues and the treatment of foreign copyright owners.
C.E. Petit thinks the new decision makes the settlement “legally untenable.” I don’t think this is a one-hit kill; a settlement class is not required to be the absolute largest it could possibly be. I do, however, expect a small flurry of briefing on this issue, as the Supreme Court’s decision is clearly relevant, controlling authority.